Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

For Thanksgiving, Professor Tatum published an opinion essay, a portion of which was published in the Arizona Daily Star (Melissa Tatum,US culture, justice system owe much to Indians, Arizona Daily Star, November 22, 2012. The essay is notable for its reminder of one of the more important consequences of globalization, the opening of borders and the emerging system of polycentric governance. The entire essay is reproduced here.

Native Americans: Underappreciated, Misrepresented and Job Creators

With Thanksgiving approaching, expect the inevitable stories surrounding the legend of the first Thanksgiving—and their debunking. Regardless of which version of the tale you accept as most accurate, all share a common thread: the Pilgrims surviving only with the helping hand of the local Native Americans.

The stories of the first Thanksgiving and the attempts to set the record straight share another common theme—they perpetuate the myth that the Indian way of life reached its peak around the time of the Pilgrims’ arrival, with each year since being a steady decline into poverty and alcoholism. Recent developments, from the tragic (shocking reports of child abuse run rampant on reservations) to the silly (Victoria’s Secret runway misstep), don’t help correct that perception.

But the truth is that the history of the United States is not a story of the triumph of western democratic ideals. In fact, almost 400 years after that first (perhaps mythical) Thanksgiving, the dominant U.S. culture still has much to learn from Indians, and actually still relies heavily on Native culture. That reliance ranges from the use of indigenous symbols to borrowing principles of justice to dependency on tribal economic development.

Much has been written about the mainstream U.S. culture borrowing Native imagery. Most of us have seen this all our lives—how many of us grew up with an American Indian as our high school mascot (or with a high school rival sporting an American Indian mascot)? The New Mexico state flag appropriates a Zia sun symbol, and of course there’s the infamous Navajo panties sold at Urban Outfitters and the now even more infamous Native American–themed bra-and-panties-clad Victoria’s Secret model.

But comparatively less is known about the mainstream’s borrowing of indigenous principles of government and justice—and you most likely won’t find blog posts addressing the topic. At most, some may have learned in school that the United States Constitution owes as much to the Iroquois Confederacy as it does to European philosophers. Even more obscure is the fact that other tribes, such as the Muscogee (Creek) Nation, also had well-developed governments built upon a separation of powers.

Very few know that the U.S. criminal justice system has taken a veritable U-turn and started borrowing heavily from traditional Native systems of justice. In 1881, Crow Dog, a Lakota, killed Spotted Tail, another member of the same tribe. Dissatisfied with the way the tribe handled the case (requiring Crow Dog to make restitution to and provide for Spotted Tail’s family), an enraged U.S. government sought to prosecute Crow Dog and sentence him to hanging.

When the U.S. Supreme Court ruled that no basis existed for the federal prosecution and ordered Crow Dog released, Congress enacted the Major Crimes Act, giving the federal government the necessary authority to prosecute Indians who commit serious crimes against other Indians in Indian country, thus taking a significant step down the path of creating the crazy quilt of criminal jurisdiction that exists today in Indian country (and that, arguably, is at least partially responsible for the lawlessness that has been noted in recent stories). This crazy quilt would lead to Amnesty International’s 2007 accusation that the U.S. is violating the human rights of Native women, who are victims of domestic violence and sexual assault (usually at the hands of non-Indians) in epidemic proportions.

The concept of rehabilitation and restorative justice that so enraged the dominant society 130 years ago in Crow Dog’s case is now found at the heart of many criminal justice reforms. The concept of rehabilitative justice has also made its way into Anglo-American civil courts, where arbitration and alternative dispute resolution draw heavily from indigenous peacemaker systems.

While there is no denying the fact that socioeconomic statistics on many reservations are terrible (the Pine Ridge reservation in South Dakota has been likened to a Third World country), the last three decades have seen a resurgence in tribal economic development, with tribal governments operating businesses ranging from factories to casinos. Those businesses have a substantial positive impact on state and county governments. Over the past two years, tribes in four states have commissioned studies to document their impact on state economies.

Those studies show that the five tribes located in Idaho employ a combined total of more than 6,200 people, making the tribes one of the top 10 employers in the state. Approximately two-thirds of the 27,000 jobs created by tribes in Washington are held by non-Indians, while an estimated 80 percent of the 52,000 jobs attributable to California tribes are filled by non-Indians.

Idaho tribes added more than $870 million to that state’s economy in 2009 and generated more than $24 million in state and local tax revenue. A 2012 report estimates that Oklahoma tribes are responsible for generating $5.6 billion in revenue, including $2.5 billion in state income. Washington tribes are responsible for $3.5 billion in overall economic contributions, including $255 million in taxes. Tribes have also helped repair county schools and county roads, purchased equipment for state police and fire departments, and funded local prosecutor positions.

Indians and Indian tribes are not relics of the past. Today’s modern tribal governments are an integral part of our national system, and as Thanksgiving approaches, we should take time to celebrate, not what they may or may not have done in the past, but the contributions they are making right now.

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Copyright; Citation and Attribution:

All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings

3rd Edition 2015

Broekman and Backer, Signs in Law

Springer 2014

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.